Supreme Court is a conservative institution, but not always predictable

Will the U.S. Supreme Court go rogue – go liberal – if Hillary Clinton wins the 2016 presidential election?

If Clinton wins, either Obama appointee Merrick Garland will join the court or a Clinton nominee will replace him. After that, there almost certainly will be at least one new justice during a Clinton term. Look at the ages of the three oldest justices. Ruth Bader Ginsberg is 83, and Anthony Kennedy is 80, Stephen Breyer 78. The departure of one or more of them could be sudden – as was Antonin Scalia's in February.

The Supreme Court is a conservative institution. Precedent not only applies to the law but the manner in which the court conducts business. Pop singer Gill Scott Herron made a hit with "The Revolution Will Not Be Televised." Well, the proceedings of the Supreme Court won't be televised either. The court is exceptionally sensitive to what it perceives as threats to propriety.

[Devil you know? Clinton would give us Supreme Court from hell]

A court whose majority is selected by Bill Clinton, Barack Obama, and Hillary Clinton is going to be generally reflective of the values of the presidents who nominated them. Not completely. But broadly. And almost certainly on campaign finance laws, workers' rights, voting rights, and marriage questions. Nevertheless, who knows what a re-configured court would say about copyright law, telecommunications, patents, and many other issues that are not politically charged and attract large constituencies.

Because Franklin Roosevelt and Harry Truman served a combined 20 consecutive years as president, there was a period from the 1940s into the 1950s when all nine justices were selected by a Democratic president. That period ended in 1953 when Chief Justice Fred Vinson of Kentucky died and was replaced by Earl Warren of California. Warren, who had been a Republican governor, was a surprise, far more liberal than the man who appointed him, President Dwight Eisenhower, anticipated. In 1964, I took a Greyhound bus from New York City to Seattle. The diverse beauty of the country surprised a 19 year-old kid. So did the "Impeach Earl Warren" signs in corn fields.

Local Republicans may not realize it but the Supreme Court chief justice has been a Republican appointee 94 of the last 106 years. Between 1910 and today, only Vinson (1946-1953) and Harlan Stone (1941-1946) have been Democratic selections. John Kennedy, Lyndon Johnson, Jimmy Carter, and Bill Clinton never had a chief justice confirmed by the Senate. Chief Justice John Roberts, who has presided since 2005, was chosen by President George W. Bush.

What happens when a large plurality or even a majority of the American public thinks the Supreme Court is in error? The answer can be widespread anger, disobedience, and efforts to alter the court's direction, if not the members of the court. In 1857, the court issued a 7-2 ruling in the Dred Scott case. The ruling reaffirmed that Scott remained a slave – property – after a Missouri court declared him free. The majority of justices were from slave states, and in much of the north, the response was outrage. The Wisconsin Supreme Court, in an attempt at nullification, called Dred Scott decision unconstitutional. Writing in The Oxford Companion to the Supreme Court, Walter Ehrlich says "American legal and constitutional scholars consider the Dred Scott decision to be the worst ever rendered by the Supreme Court."

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Plessy v Ferguson, the case that made separate but equal infamous, the court decision overturning child labor laws, and the court's early hostility to the federal income tax, all were greeted with anger. Americans were so unhappy with the income tax decision they eventually amended the Constitution, the ultimate rebuke to the Supreme Court.

Today, abortion opponents are hoping that the court will reverse its Roe v Wade decision and make abortion illegal again.

The Supreme Court changes slowly, but it does change. Conservatives who have been satisfied with the Burger, Rehnquist, and Roberts courts that followed the Warren Court are finding that out. If the court has gone through periods of widespread vilification, it has never been deeply unpopular in the age of instant communication. Those "Impeach Earl Warren" billboards were fixed, immobile and seen by a small percentage of Americans. They were not on cable, Twitter and Facebook, available everywhere.

Justice Roberts has described himself as an umpire "who calls 'em like he sees 'em." Liberal justices have said much the same thing. The justices seem to forget the cry generations of baseball fans have launched in response to unpopular calls: "Kill the umpire."

Michael Carey is an Alaska Dispatch columnist. He can be reached at mcarey@alaskadispatch.com.

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